Clemmer v. Hartford Ins. Co.

• Citation: 66 Cal.App.3d 207,135 Cal.Rptr. 848
• Court: California Court of Appeals
• Decision Date: 24 January 1977
• Parties: Marjorie J. CLEMMER and Hugh Howard Clemmer, a minor under 14 years of age, by Marjorie Clemmer, as guardian ad litem, Plaintiffs, Appellants and Respondents, v. The HARTFORD INSURANCE COMPANY, a corporation, Defendant, Respondent and Appellant. Civ. 47451.

Page 848

135 Cal.Rptr. 848

66 Cal.App.3d 207

Marjorie J. CLEMMER and Hugh Howard Clemmer, a minor under 14 years of age, by Marjorie Clemmer, as guardian ad litem, Plaintiffs, Appellants and Respondents, v. The HARTFORD INSURANCE COMPANY, a corporation, Defendant, Respondent and Appellant.

Civ. 47451.

Court of Appeal, Second District, Division 3, California.

Jan. 24, 1977.

For Opinion on Hearing, see 151 Cal.Rptr. 285, 587 P.2d 1098.

Gibson, Dunn & Crutcher, John H. Sharer Fred F. Gregory, Los Angeles, for appellants and respondents Clemmer.

Overton, Lyman & Prince, Carl J. Schuck, John D. McCurdy, Valerie Baker, Los Angeles, for respondent and appellant Hartford.

ALLPORT, Acting Presiding Justice.

It appears without conflict that on January 30, 1971, Daniel D. Lovelace, M.D. shot and killed his employer Hugh Clemmer, M.D. Dr. Clemmer left surviving his wife Marjorie and a minor son Hugh. Dr. Lovelace was charged with murder and convicted thereof in the second degree. In a civil wrongful death action Dr. Clemmer's widow and minor son obtained a default judgment againt Dr. Lovelace in the sum of $2,003,421. That judgment became final. Thereafter the instant action was brought by the Clemmers against The Hartford Insurance Group based upon an insurance policy purporting to indemnify Dr. Lovelace for all sums which he is legally obligated to pay as damages and expenses in excess of $50,000 to a maximum of $5,000,000 because of personal injury or property damage occurring during the policy period. Hartford answered the complaint denying generally that the policy in question extended any coverage to the Clemmers and specifically because the loss or injury arose from a willful act for which the carrier was not liable under Insurance Code section 533. ¹ The issue raised by this defense, the willfulness of the act, was submitted to a jury which, in response to a special interrogatory, determined that Dr. Clemmer's death was not caused by a willful act of Dr. Lovelace. In accordance with this determination the trial court prepard, signed and filed extensive findings of fact concluding therefrom that the death was not caused by a willful act rendering the policy exclusion ² and Insurance Code section 533 inapplicable. Judgment was entered accordingly in favor of the Clemmers for $2,003,480 less the $50,000 deductible. Thereafter Hartford moved for a judgment notwithstanding the verdict, a new trial and to vacate the judgment and to enter a new and different judgment. These motions were argued and submitted. On June 11 and 18, 1975, the trial court made orders the effect of which was to deny the motions for judgment notwithstanding the verdict, to vacate the judgment and enter a new and different judgment and, after vacating certain of its conclusions of law, the jury's verdict and the judgment, to grant the motion for a new trial limited to the sole issue previously submitted to the jury.

The Clemmers appeal from the portions of those orders which vacated conclusions of law, the jury verdict, the judgment and granted defendant a new trial as well as from the specification of reasons therefor. Hartford cross-appeals from those portions denying its motions for judgment notwithstanding the verdict, to vacate the judgment and enter another and different judgment, for a new trial on all issues and from the judgment. No appeal is taken by Hartford from the order insofar as it did in fact vacate conclusions of law, the verdict and judgment and grant a new trial.. The appeals lie. (Code Civ.Proc., § 904.1 subds. (a)(b)(d).)

The Clemmer Appeal Contentions

It is contended on appeal by the Clemmers that (1) the order granting the new trial must be reversed because the specifications of reasons is legally inadequate and not supported by substantial evidence, (2) the granting of a new trial upon the ground of insufficiency of evidence violates constitutional rights to jury trial and due process, and, (3) irrespective of the question of willfulness, the order granting a new trial was improper because (a) Hartford had breached its duty to defend Dr. Lovelace in the basic action and is now bound by the implied finding of negligence which follows from the adverse judgment in the wrongful death action, and (b) an innocent third party beneficiaries to the insurance contract, the exclusion for willful acts is inapplicable to them.

Discussion

We have examined the introductory factual statement and accompanying exhaustive legal treatise presented by plaintiffs and find same interesting but hardly calculated to influence our decision herein.

The statutory law applicable to the granting of a new trial and review of the order granting same is found in Code of Civil Procedure section 657 enacted in 1872 and last amended in 1967. It is provided therein that:

'The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: . . .

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against the law. . . .

When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated.

A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. . . .

On appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons, except that (a) the order shall not be affirmed upon the ground of the insufficiency of the evidence to justify the verdict or other decision, or upon the ground of excessive or inadequate damages, unless such ground is stated in the order granting the motion and (b) on appeal from an order granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict or other decision, or upon the ground of excessive or inadequate damages, it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification of reasons, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons.'

We first turn to the contention that 'The specification of reasons is wholly inadequate and the order granting a new trial must be vacated on that basis alone.' We construe this to be an attack on the technical sufficiency of the procedure employed by the trial court in resolving the problem before it when presented with these post judgment motions.

The minute order granting the new trial reads in pertinent part: 'A new trial is granted to defendant upon the sole ground that the evidence in the case is insufficient to justify the verdict of the jury. . . .' No more specific statement of the ground for the granting of the motion could be made. In compliance with section 657 a five page document entitled 'Specifications of Reasons For Granting Motion for New Trial' (emphasis added) was prepared by the court and filed. This document commenced as follows:

'The motion for new trial is granted because after weighing the evidence the Court is convinced from the entire record, including all reasonable inferences therefrom, that the jury clearly should have reached a verdict determining that the death of Dr. Clemmer was caused by a willful act of Dr. Lovelace. The reasons for granting said motion on said ground are as follows:

The Court defined the area of the jury's consideration by a formula instruction as follows:

If you find by a preponderance of the evidence that Dr. Lovelace had the mental capacity to intend to shoot and harm Dr. Clemmer when he caused his death, as well as the mental capacity to govern his own conduct, you will answer this question 'Yes.'

If, on the other hand, you find that at that time Dr. Lovelace was suffering from a mental disease or defect of such magnitude that he could not form the mental state I have just mentioned, then you will answer the question 'No.'

Unless evidence may be found to support the jury's verdict within the limits of this instruction, the verdict may not stand.'

In the ensuing two pages the court summarized the evidence on the subject concluding that:

'In the face of the uncontroverted factual evidence of rational, deliberate conduct, both before, at the time of, and after the murder, a finding that this act was not willful is ridiculous and makes a mockery of the legal process. Measured by the jury's finding in this case, no person could be held to have willfully performed a planned action, provided he was motivated by a sense of depression or anger. In weighing the evidence as I must, I reject the opinions of Dr. Anselen, which would exonerate Dr. Lovelace from the ability to kown and recognize the nature of his act and to control his conduct, as being absurd. Aside from these ill-founded opinions, there is no support for the jury's finding. I am satisfied that if the action had been between two individuals, rather than a widow and fatherless child against an insurance company, a different result would have been reached by the jury.'

It seems too obvious for discussion that the ground for the granting of the new trial was insufficiency of the evidence. This is an acceptable ground for the taking of such action. (Code Civ.Proc., § 657 subd. 6.) The reason...